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Excerpts From High Court's Decision on the Brady Handgun-Control Law

Following are excerpts from the Supreme Court's decision today striking down the Brady gun-control law's requirement that state officials do background checks on would-be handgun buyers. Justice Antonin Scalia wrote the 5-to-4 majority opinion in Printz v. United States. Justices Sandra Day O'Connor and Clarence Thomas filed concurring opinions, while Justices John Paul Stevens, Stephen G. Breyer and David H. Souter filed dissents.

FROM THE DECISION -- By Justice Scalia

The question presented in these cases is whether certain interim provisions of the Brady Handgun Violence Prevention Act, commanding state and local law-enforcement officers to conduct background checks on prospective handgun purchasers and to perform certain related tasks, violate the Constitution.

I

The Gun Control Act of 1968 (G.C.A.) establishes a detailed Federal scheme governing the distribution of firearms. It prohibits firearms dealers from transferring handguns to any person under 21, not resident in the dealer's state, or prohibited by state or local law from purchasing or possessing firearms. It also forbids possession of a firearm by, and transfer of a firearm to, convicted felons, fugitives from justice, unlawful users of controlled substances, persons adjudicated as mentally defective or committed to mental institutions, aliens unlawfully present in the United States, persons dishonorably discharged from the Armed Forces, persons who have renounced their citizenship, and persons who have been subjected to certain restraining orders or been convicted of a misdemeanor offense involving domestic violence.

In 1993, Congress amended the G.C.A. by enacting the Brady Act. The act requires the Attorney General to establish a national instant background check system by Nov. 30, 1998, and immediately puts in place certain interim provisions until that system becomes operative. Under the interim provisions, a firearms dealer who proposes to transfer a handgun must first: (1) receive from the transferee a statement (the Brady Form), containing the name, address and date of birth of the proposed transferee along with a sworn statement that the transferee is not among any of the classes of prohibited purchasers; (2) verify the identity of the transferee by examining an identification document; and (3) provide the ''chief law-enforcement officer'' (CLEO) of the transferee's residence with notice of the contents (and a copy) of the Brady Form. With some exceptions, the dealer must then wait five business days before consummating the sale, unless the CLEO earlier notifies the dealer that he has no reason to believe the transfer would be illegal.

The Brady Act creates two significant alternatives to the foregoing scheme. A dealer may sell a handgun immediately if the purchaser possesses a state handgun permit issued after a background check, or if state law provides for an instant background check. In states that have not rendered one of these alternatives applicable to all gun purchasers, CLEOs are required to perform certain duties. When a CLEO receives the required notice of a proposed transfer from the firearms dealer, the CLEO must ''make a reasonable effort to ascertain within five business days whether receipt or possession would be in violation of the law, including research in whatever state and local recordkeeping systems are available and in a national system designated by the Attorney General.'' The act does not require the CLEO to take any particular action if he determines that a pending transaction would be unlawful; he may notify the firearms dealer to that effect, but is not required to do so. If, however, the CLEO notifies a gun dealer that a prospective purchaser is ineligible to receive a handgun, he must, upon request, provide the would-be purchaser with a written statement of the reasons for that determination. Moreover, if the CLEO does not discover any basis for objecting to the sale, he must destroy any records in his possession relating to the transfer, including his copy of the Brady Form. Under a separate provision of the G.C.A., any person who ''knowingly violates (the section of the G.C.A. amended by the Brady Act) shall be fined under this title, imprisoned for no more than one year, or both.''

Petitioners Jay Printz and Richard Mack, the CLEOs for Ravalli County, Mont., and Graham County, Ariz., respectively, filed separate actions challenging the constitutionality of the Brady Act's interim provisions. In each case, the District Court held that the provision requiring CLEOs to perform background checks was unconstitutional, but concluded that that provision was severable from the remainder of the act, effectively leaving a voluntary background-check system in place. A divided panel of the Court of Appeals for the Ninth Circuit reversed, finding none of the Brady Act's interim provisions to be unconstitutional. We granted certiorari.

II

From the description set forth above, it is apparent that the Brady Act purports to direct state law enforcement officers to participate, albeit only temporarily, in the administration of a Federally enacted regulatory scheme. . . .

The petitioners here object to being pressed into Federal service, and contend that Congressional action compelling state officers to execute Federal laws is unconstitutional. Because there is no constitutional text speaking to this precise question, the answer to the CLEOs' challenge must be sought in historical understanding and practice, in the structure of the Constitution, and in the jurisprudence of this Court. We treat those three sources, in that order, in this and the next two sections of this opinion.

Petitioners contend that compelled enlistment of state executive officers for the administration of Federal programs is, until very recent years at least, unprecedented. The Government contends, to the contrary, that ''the earliest Congresses enacted statutes that required the participation of state officials in the implementation of federal laws.'' . . .

These early laws establish, at most, that the Constitution was originally understood to permit imposition of an obligation on state judges to enforce Federal prescriptions, insofar as those prescriptions related to matters appropriate for the judicial power. . . .

We do not think the early statutes imposing obligations on state courts imply a power of Congress to impress the state executive into its service. . . .

III

The constitutional practice we have examined above tends to negate the existence of the congressional power asserted here, but is not conclusive. We turn next to consideration of the structure of the Constitution, to see if we can discern among its ''essential postulate(s),'' a principle that controls the present cases.

It is incontestable that the Constitution established a system of ''dual sovereignty.'' Although the states surrendered many of their powers to the new Federal Government, they retained ''a residuary and inviolable sovereignty,'' This is reflected throughout the Constitution's text, including (to mention only a few examples) the prohibition on any involuntary reduction or combination of a state's territory, the Judicial Power Clause, and the Privileges and Immunities Clause, which speak of the ''Citizens'' of the states; the amendment provision, which requires the votes of three-fourths of the states to amend the Constitution; and the Guarantee Clause, which ''presupposes the continued existence of the states and . . . those means and instrumentalities which are the creation of their sovereign and reserved rights.'' Residual state sovereignty was also implicit, of course, in the Constitution's conferral upon Congress of not all governmental powers, but only discrete, enumerated ones, which implication was rendered express by the 10th Amendment's assertion that ''(t)he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.''

The Framers' experience under the Articles of Confederation had persuaded them that using the states as the instruments of Federal governance was both ineffectual and provocative of Federal-state conflict. . . .

When we were at last confronted squarely with a Federal statute that unambiguously required the states to enact or administer a Federal regulatory program, our decision should have come as no surprise. At issue in New York v. United States, were the so-called ''take title'' provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985, which required states either to enact legislation providing for the disposal of radioactive waste generated within their borders, or to take title to, and possession of, the waste, effectively requiring the states either to legislate pursuant to Congress's directions, or to implement an administrative solution. We concluded that Congress could constitutionally require the states to do neither. ''The Federal Government,'' we held, ''may not compel the states to enact or administer a Federal regulatory program.'' . . .

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The Government puts forward a cluster of arguments that can be grouped under the heading: ''The Brady Act serves very important purposes, is most efficiently administered by CLEOs during the interim period, and places a minimal and only temporary burden upon state officers.'' There is considerable disagreement over the extent of the burden, but we need not pause over that detail. Assuming all the mentioned factors were true, they might be relevant if we were evaluating whether the incidental application to the states of a Federal law of general applicability excessively interfered with the functioning of state governments. But where, as here, it is the whole object of the law to direct the functioning of the state executive, and hence to compromise the structural framework of dual sovereignty, such a ''balancing'' analysis is inappropriate. It is the very principle of separate state sovereignty that such a law offends, and no comparative assessment of the various interests can overcome that fundamental defect. . . .

We adhere to that principle today, and conclude categorically, as we concluded categorically in New York: ''The Federal Government may not compel the states to enact or administer a Federal regulatory program.'' The mandatory obligation imposed on CLEOs to perform background checks on prospective handgun purchasers plainly runs afoul of that rule. . . .

We held in New York that Congress cannot compel the States to enact or enforce a Federal regulatory program. Today we hold that Congress cannot circumvent that prohibition by conscripting the state's officers directly. The Federal Government may neither issue directives requiring the states to address particular problems, nor command the states' officers, or those of their political subdivisions, to administer or enforce a Federal regulatory program. It matters not whether policymaking is involved, and no case-by-case weighing of the burdens or benefits is necessary; such commands are fundamentally incompatible with our constitutional system of dual sovereignty. Accordingly, the judgment of the Court of Appeals for the Ninth Circuit is reversed.

From a Concurring Opinion -- By Justice Thomas

The Court today properly holds that the Brady Act violates the 10th Amendment in that it compels state law enforcement officers to ''administer or enforce a Federal regulatory program.'' Although I join the Court's opinion in full, I write separately to emphasize that the 10th Amendment affirms the undeniable notion that under our Constitution, the Federal Government is one of enumerated, hence limited, powers. Accordingly, the Federal Government may act only where the Constitution authorizes it to do so.

In my ''revisionist'' view, the Federal Government's authority under the Commerce Clause, which merely allocates to Congress the power ''to regulate Commerce . . . among the several states,'' does not extend to the regulation of wholly intrastate, point-of-sale transactions. Absent the underlying authority to regulate the intrastate transfer of firearms, Congress surely lacks the corollary power to impress state law-enforcement officers into administering and enforcing such regulations. Although this Court has long interpreted the Constitution as ceding Congress extensive authority to regulate commerce (interstate or otherwise), I continue to believe that we must ''temper our Commerce Clause jurisprudence'' and return to an interpretation better rooted in the clause's original understanding. Even if we construe Congress's authority to regulate interstate commerce to encompass those intrastate transactions that ''substantially affect'' interstate commerce, I question whether Congress can regulate the particular transactions at issue here.The Second Amendment provides: ''(a) well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.'' This Court has not had recent occasion to consider the nature of the substantive right safeguarded by the Second Amendment. If, however, the Second Amendment is read to confer a personal right to ''keep and bear arms,'' a colorable argument exists that the Federal Government's regulatory scheme, at least as it pertains to the purely intrastate sale or possession of firearms, runs afoul of that amendment's protections. As the parties did not raise this argument, however, we need not consider it here.

From a Dissent -- By Justice Stevens

When Congress exercises the powers delegated to it by the Constitution, it may impose affirmative obligations on executive and judicial officers of state and local governments as well as ordinary citizens. This conclusion is firmly supported by the text of the Constitution, the early history of the nation, decisions of this Court, and a correct understanding of the basic structure of the Federal Government. . . .

The Brady Act was passed in response to what Congress described as an ''epidemic of gun violence.'' The Act's legislative history notes that 15,377 Americans were murdered with firearms in 1992, and that 12,489 of these deaths were caused by handguns. Congress expressed special concern that ''(t)he level of firearm violence in this country is, by far, the highest among developed nations.'' The partial solution contained in the Brady Act, a mandatory background check before a handgun may be purchased, has met with remarkable success. Between 1994 and 1996, approximately 6,600 firearm sales each month to potentially dangerous persons were prevented by Brady Act checks; over 70 percent of the rejected purchasers were convicted or indicted felons. The Congressional decision surely warrants more respect than it is accorded in today's unprecedented decision.

I

The text of the Constitution provides a sufficient basis for a correct disposition of this case.

Article I, s8, grants the Congress the power to regulate commerce among the States. Putting to one side the revisionist views expressed by Justice Thomas in his concurring opinion in United States v. Lopez, there can be no question that that provision adequately supports the regulation of commerce in handguns effected by the Brady Act. . . .

II

Under the Articles of Confederation the national Government had the power to issue commands to the several sovereign states, but it had no authority to govern individuals directly. Thus, it raised an army and financed its operations by issuing requisitions to the constituent members of the Confederacy, rather than by creating Federal agencies to draft soldiers or to impose taxes.

That method of governing proved to be unacceptable, not because it demeaned the sovereign character of the several states, but rather because it was cumbersome and inefficient. The basic change in the character of the Government that the Framers conceived was designed to enhance the power of the national Government, not to provide some new, unmentioned immunity for state officers. Because indirect control over individual citizens (''the only proper objects of Government'') was ineffective under the Articles of Confederation, Alexander Hamilton explained that ''we must extend the authority of the Union to the persons of the citizens.'' The Federalist No. 15.

Indeed, the historical materials strongly suggest that the Founders intended to enhance the capacity of the Federal Government by empowering it as a part of the new authority to make demands directly on individual citizens to act through local officials. . . .

The provision of the Brady Act that crosses the Court's newly defined constitutional threshold is more comparable to a statute requiring local police officers to report the identity of missing children to the Crime Control Center of the Department of Justice than to an offensive Federal command to a sovereign state. If Congress believes that such a statute will benefit the people of the nation, and serve the interests of cooperative federalism better than an enlarged Federal bureaucracy, we should respect both its policy judgment and its appraisal of its constitutional power.

Accordingly, I respectfully dissent.

From a Dissent -- By Justice Souter

In deciding these cases, which I have found closer than I had anticipated, it is The Federalist that finally determines my position. I believe that the most straightforward reading of No. 27 is authority for the Government's position here, and that this reading is both supported by No. 44 and consistent with Nos. 36 and 45.

Hamilton in No. 27 first notes that because the new Constitution would authorize the national Government to bind individuals directly through national law, it could ''employ the ordinary magistracy of each (state) in the execution of its laws.'' Were he to stop here, he would not necessarily be speaking of anything beyond the possibility of cooperative arrangements by agreement. But he then addresses the combined effect of the proposed Supremacy Clause and state officers' oath requirement, and he states that ''the Legislatures, Courts and Magistrates of the respective members will be incorporated into the operations of the national Government, as far as its just and constitutional authority extends; and will be rendered auxiliary to the enforcement of its laws.'' The natural reading of this language is not merely that the officers of the various branches of state governments may be employed in the performance of national functions; Hamilton says that the state governmental machinery ''will be incorporated'' into the nation's operation, and because the ''auxiliary'' status of the state officials will occur because they are ''bound by the sanctity of an oath.'' I take him to mean that their auxiliary functions will be the products of their obligations thus undertaken to support Federal law, not of their own, or the states', unfettered choices.

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A version of this article appears in print on June 28, 1997, on Page 1001008 of the National edition with the headline: Excerpts From High Court's Decision on the Brady Handgun-Control Law. Order Reprints|Today's Paper|Subscribe